Michigan Journal of International Law
Volume 25 | Issue 4
2004
The Hole in the Whole: Sovereignty, Shared
Sovereignty, and International Law
Stephen D. Krasner
Stanford University
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Recommended Citation
Stephen D. Krasner, The Hole in the Whole: Sovereignty, Shared Sovereignty, and International Law, 25 Mich. J. Int'l L. 1075 (2004).
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THE HOLE IN THE WHOLE: SOVEREIGNTY,
SHARED SOVEREIGNTY, AND
INTERNATIONAL LAW
Stephen D. Krasner*
INTRODU CTION ....................................................................................
I. SOVEREIGNTY .........................................................................
II. INESCAPABLE TENSIONS .........................................................
III. THE DURABILITY OF DEVIATIONS FROM
CONVENTIONAL SOVEREIGNTY ..............................................
IV . BAD GOVERNANCE .................................................................
V.
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THE PRESENT POLICY REPERTOIRE:
GOVERNANCE ASSISTANCE AND
VI.
VII.
TRANSITIONAL ADMINISTRATION ...........................................
TRUSTEESHIPS: AN UNLIKELY POSSIBILITY ...........................
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SHARED SOVEREIGNTY: A PROMISING ALTERNATIVE ...........
A. Past Examples of Shared Sovereignty..............................
B. ContemporaryExamples of Shared Sovereignty .............
C. Future Possibilitiesfor Shared Sovereignty.....................
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C ON CLU SION .......................................................................................
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INTRODUCTION
Ideally, a body of law comprises a set of coherent and consistent
rules. These rules contribute to the creation of an environment that is
predictable, efficacious, and just. Most international lawyers hope, expect, or believe that such a body of law can exist for the international
system. This is a fool's errand.
Clear bodies of international law may develop in specific issue areas,
but only if they create self-enforcing equilibria; that is, if the relevant
parties, those with the ability to violate the rule, believe that they would
be worse off if they did so. Even when self-enforcing equilibria do exist,
they last only so long as the interests and capabilities of actors, which
may always change, generate a structure of payoffs that induces continued rule adherence. Many issues, including core questions related to
sovereignty, will never be able to generate self-enforcing equilibria in the
first place.
There are at least three impediments to the development of a stable
body of international law: disagreements about basic substantive and
procedural norms; unequal distributions of power; and the absence of
Stephen D. Krasner is Graham H. Stuart Professor of International Relations and
*
Director of the Center on Democracy, Development, and the Rule of Law at Stanford University.
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Michigan Journalof InternationalLaw
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any final authoritative decision maker. Disagreements about norms are
inescapable because of differences in beliefs and interests among actors
in the contemporary international system. States are the most important
of these actors. Major states have very different views about what constitutes appropriate behavior and how international law should be
conceived. Many European political leaders have more faith in the efficacy of international law than do their American counterparts, and are
more willing to see law as a device for enunciating norms that may only
at some later point in time result in concrete action. Contemporary
American political leaders, regardless of party, are more prone to see law
as a device for promoting concrete interests. American decision makers
have been more skeptical of the idea that the law could be a beacon or
magnet which would somehow attract adherents to desirable norms over
time. The Europeans enthusiastically backed the International Criminal
Court even though it was clear that the United States would not join the
Court unless there was a Security Council right of veto over cases, and
the Europeans embraced the Kyoto Protocol even though it was clear
that its targets could not be met by many states, including the United
States, at acceptable economic costs.' The concerns of weaker countries
in the third world are much different from those of the industrialized
north. While powerful industrialized states are now deeply concerned
about terrorism, which they see as the major threat to their security, developing countries see disease and poverty as their primary protagonists.
Furthermore, it is not necessary to embrace Samuel Huntington's clash
of civilizations to recognize that normative values vary among regions as
a result of culture, religion, and history.
Perhaps more important, power varies dramatically in the international system, and there is no final authority than can resolve
disagreements. The differences between the material capabilities of the
United States and other countries, even major industrial countries hardly
needs rehearsing. The population of states in the present international
system varies from over one billion to under fifty thousand. The revenues of the government of Sierra Leone in the late 1990s were less than
ten percent the revenues of the city of Palo Alto, California, with a population 59,000.2 In a system in which the actors have different values,
different interests, wildly uneven capabilities, and where there is no authoritative decision maker to resolve disagreements and enforce
1.
For a general discussion of the political and analytic shortfalls of the Kyoto Protocol, see DAVID G. VICTOR, THE COLLAPSE OF THE KYOTO PROTOCOL AND THE STRUGGLE TO
SLOW GLOBAL WARMING (2001).
2.
Palo Alto, California, Population and Demographics Resources, at http://
paloalto.areaconnect.com/statisics.htm (last visited May 10, 2004).
Summer 2004]
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The Hole in the Whole
judgments, it should not be surprising that rules and norms would be
contested, including rules and norms associated with sovereignty.
I. SOVEREIGNTY
Sovereignty is now the only game in town. Other ways of ordering
political life, including colonialism, trusteeships, empires, and the traditional Sino-centric system, lack legitimacy; that is, they would either not
make sense (how many people in Taiwan would be able to explain the
concept of a tributary state, a central element in the traditional Sinocentric view of international relations), or would be rejected by a large
proportion of the populations that might be subject to them, which would
clearly be the case for colonialism Nevertheless, the meaning of sovereignty and the actions that can be undertaken by or directed at a
sovereign state are, and have always been, both contested and ambiguous.
There are three central elements or aspects of sovereignty:
Internationallegal sovereignty. The basic rule of international legal
sovereignty is: recognize juridically independent territorial entities. Once
a territory is recognized-that is, acknowledged by others to be a stateit has the right to enter into any agreement it chooses. This rule has been
widely, but not universally honored.
Westphalian, or more appropriately,Vattelian sovereignty. The basic rule of Westphalian/Vattelian sovereignty is: do not intervene in the
internal affairs of other states. Each state has the right to independently
determine its own institutions of government. Empirically, the rule of
non-intervention has frequently been violated.
Domestic Sovereignty. Domestic sovereignty refers to the institutions
under which a particular state is governed and their effectiveness. There
is no rule or norm here although in an ideal world, these institutions
would provide security, prosperity, and justice for the inhabitants of the
state. In many countries, this ideal is far from being realized
Despite recent works that have explicated some of the virtues of colonialism, the
3.
populations of former colonies are not clamoring to bring back their colonial masters. For a
defense of some aspects of British colonialism, see NIALL
FERGUSON, EMPIRE: THE RISE AND
DEMISE OF THE BRITISH WORLD ORDER AND THE LESSONS FOR GLOBAL POWER
(2002).
Though the principle of non intervention is traditionally associated with the Peace
4.
of Westphalia of 1648, the doctrine was not explicitly articulated until a century later, by the
Swiss jurist Emmerich de Vattel in his THE
LAW OF NATIONS; OR, PRINCIPLES OF THE LAW OF
NATURE: APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS
ch. 4 § 54
(Dublin, Luke White 1792) (French Original 1758).
Domestic sovereignty, especially the need to establish some one final source of
5.
authority, was the central concern of two of the key modem thinkers about sovereignty, Bodin
and Hobbes. See THOMAS HOBBES, LEVIATHAN (Michael Oakeshott ed., Macmillan 1947)
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The three elements of sovereignty are neither logically nor
empirically related to each other. Failed or badly governed states enjoy
international recognition but do not have effective domestic sovereignty
and may not have Westphalian/Vattelian sovereignty. States that do have
effective domestic and Westphalian/Vattelian sovereignty may not be
recognized. The Peoples Republic of China from the 1950s until the
1970s is a case in point. Entities may be recognized that do not have
Westphalian/ Vattelian sovereignty; Ukraine and Byelorussia from 1945
until the collapse of the Soviet Union are examples.
From an international law perspective, these departures from conventional sovereignty might not appear to be that damaging to
aspirations for a well ordered system of international rules and norms.
The international environment is a messy place. Things may episodically
go awry. There may still be a modal tendency that pulls actors back to
conventional sovereignty. In the end, China was recognized (of course,
recognition was withdrawn from Taiwan which has effective domestic
sovereignty and WestphalianlVattelian sovereignty). Failed states may
not remain failed forever. Ukraine and Byelorussia may be viewed as
oddball exceptions to the principle that only juridically independent entities should be recognized.
II.
INESCAPABLE TENSIONS
The view that deviations from conventional norms are temporary aberrations or random perturbations around a generally honored central
tendency, fails to confront the persistence and extent of departures from
conventional practices especially with regard to Westphalian/Vattelian
sovereignty. These departures reflect foundational characteristics of the
international system: power asymmetries, differing interests, and the absence of any final authority. More specifically, the core interests of
powerful states have repeatedly been threatened by the nature of domestic political regimes in weaker states. To lessen this threat, political
leaders in powerful states have moved to change the domestic authority
structure in weaker ones. If the interests of powerful states are furthered
by intervening in the internal affairs of weaker ones, there is no authority
that can prevent such intervention. Violations of Westphalian/Vattelian
(1651); JEAN BODIN, THE Six BOOKS OF A COMMONWEALE (Kenneth Douglas McRae ed.,
Harvard Univ. Press 1962) (Original English Translation 1606). For a critique of sovereignty
as one final point of authority, see Stephen D. Krasner, Sovereignty: Political, in INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL & BEHAVIORAL SCIENCES 14706, 14706-08 (Smelser
& Baltes eds., 2001).
Summer 20041
The Hole in the Whole
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sovereignty are not aberrations, but rather an enduring characteristic of
the sovereign state system.
For instance, John Owen reports one hundred ninety-eight cases of
forcible intervention to change domestic regimes in the period 1555 to
2000, most of which occurred during three period of ideological conflict
among major powers: the Reformation and Counter-Reformation, the
French Revolution and its aftermath (1789-1849), and the ideological
struggles of the twentieth century (1917-1991), with spikes during episodes of hegemonic struggle: the Thirty Years War, the French
revolutionary and Napoleonic wars, and the beginning of the Cold War.
The primary motivation of interveners was to enhance security by imposing like minded regimes in weaker states that were suffering from
internal conflict. In cases of forced imposition, there is little pretense of
domestic acquiescence, of honoring international legal sovereignty, although major power may sometimes identify local allies.6
The history associated with the Cold War is widely known. The Cold
War was essentially a struggle between the United States and the Soviet
Union over the nature of domestic political regimes in third countries.
Neither superpower respected Westphalian/Vattelian sovereignty. Both
wanted to prevent countries from adopting domestic institutional arrangements supported by the other.
With the exception of Czechoslovakia, the Soviet Union essentially
imposed communist regimes on those countries that were occupied by
the Soviet military at the end of the Second World War and continued
directly to penetrate some of the authority structures of these states after
communist regimes were established. For instance, Soviet secret police
operated throughout Eastern Europe and were empowered to arrest individuals regardless of their nationality. The head of the Polish Security
Ministry had Soviet officers as his personal guards. He was advised by
an official of the Soviet Ministry of State Security. In the Polish Ministry
of Internal Security, eight out of twenty sections were headed by Soviet
officers. Similar levels of penetration occurred in other countries. The
militaries of the satellite states, with the exception of Romania which
under Ceaucescu adopted a different strategy, could not operate independently.8 Rather, under the Warsaw Pact, they were integrated into a
6.
John M. Owen, IV, The Foreign Imposition of Domestic Institutions, 56 INT'L ORG.
375, 375-77 (2002).
7.
ZBIGNIEW K. BRZEZINSKI, THE SOVIET BLOC: UNITY AND CONFLICT 120-21
(1960).
8.
While Ceausescu challenged the Soviet Union with regard to foreign policy, he
never deviated in his commitment to communism, a strategy that spared him from the fate that
befell Czechoslovakia in 1968, when it attempted to mollify Soviet political concerns while at
the same time dismantling the apparatus of Communist party domination. The economies of
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Michigan Journalof InternationalLaw
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command structure that was controlled by Soviet officers. The Soviets
also gave support to Third World countries that adopted Marxism/Leninism as their governing ideology. Cuba is one obvious example.
Such support was not a violation of the rules of sovereignty-the transfers were entirely consistent with international legal and Westphalian/
Vattelian sovereignty-but such support demonstrates that the Soviets
were hardly indifferent to the attractiveness and viability of communism
around the world, and not just in Eastern Europe.
American leasers adopted a similar strategy. The United States
pushed for the creation of democratic and capitalist regimes in occupied
Germany and Japan. Confronted with the possibility of a communist victory in Italy in 1948, American officials indicated that they would
withdraw foreign assistance if the communists won, and even threatened
military action. 9 The United States sent troops to Korea and Vietnam to
prevent communist takeovers of both countries; successfully in the former, but not in the latter. The United States intervened in the Dominican
Republic in 1965 to prevent what was mistakenly perceived to be a
communist coup in the making,' and in Grenada in 1983. The United
States engaged in covert interventions in Iran in 1951 and in Chile in
1973. The common thread that ran through all American interventions
during the Cold War (with the exception of Panama in 1989), both covert
and overt, was the fear, sometimes well-founded and sometimes not, that a
country was about to "go communist." The United States, like the Soviet
Union, had little use for the principle of Westphalian/Vattelian sovereignty
when its leaders understood basic security interests to be at risk.
The use of force, either overt or covert, has not been the only way in
which major powers have tried to influence domestic sovereignty in
other countries. Another tool has been to use recognition, the granting of
international legal sovereignty, to leverage change in the domestic political institutions of a target state. Minority rights have been a problem in
the international system for the last two centuries. Leaders of more powerful states have been concerned about minority rights in some weaker
states not only because of principles and identification with coreligionists or co-ethnics, but also because instability in weaker states
associated with ethnic tensions could threaten the security of larger ones.
One way in which larger states have tried to address this issue has been
to condition recognition on the acceptance of minority rights.
most of the satellite states had policies that mirrored those of the Soviet Union. Christopher D.
Jones, NationalArmies and NationalSovereignty, in THE WARSAW PACT: ALLIANCE IN TRANSITION? 88-103 (Holloway & Sharp eds., 1984).
9.
JAMES EDWARD MILLER, THE UNITED STATES AND ITALY, 1940-1950: THE POLITICS AND DIPLOMACY OF STABILIZATION 229, 237 (1986).
10.
ABRAHAM F. LOWENTHAL, THE DOMINICAN INTERVENTION 72-73 (1972).
The Hole in the Whole
Summer 20041
1081
In Europe, the Balkans offers the most compelling example. The major European powers made the acceptance of minority rights a condition
of recognition for all of the successor states of the Ottoman Empire beginning with Greece in 1832, followed by Romania, Bulgaria,
Montenegro, and Serbia, and ending with Albania in 1913 and Turkey
itself after the First World War. The Europeans were insistent on minority rights for a number of reasons. Humanitarian concerns about Turkish
repression of unrest in Bulgaria in the 1870s helped to return Gladstone
(who had written a pamphlet called The Bulgarian Horrors and the
Question of the East) to the prime ministership in 1880. Jewish groups in
western Europe and the United States pressed their governments to address anti-Semitic policies in Romania at the end of the nineteenth
century. Most important, however, the major powers feared that ethnic
tensions in the Balkans could threaten their own security. During the
nineteenth century, the major powers were persistently drawn into conflicts in the Balkans as Ottoman authority weakened and the interests of
Russia, Britain, and Austria-Hungary were directly engaged. The Russians were anxious to expand their influence to the south, including
access to the Mediterranean; the British worried about the growth of
Russian power, especially after the completion of the Suez Canal, a key
link with British India, in 1869; and Austria-Hungary was increasingly
concerned about the impact of ethnic tensions and nationalism in the
Balkans on the behavior of Slavs within the Empire. The outbreak of the
First World War proved these anxieties to be all too well founded."
The practice of conditioning recognition of new Balkan states on the
acceptance of minority rights was again followed by the European
powers after the breakup of Yugoslavia in the early 1990s. In 1991, the
foreign ministers of the European Community made acceptance of the
Carrington Plan the prerequisite for recognition. The plan stipulated that
basic civil and political rights were to apply to all, regardless of sex,
race, color, language, religion, or minority status. The republics were to
respect the rights of national and ethnic minorities elaborated in
conventions adopted by the United Nations and the Commission on
Security and Cooperation in Europe (CSCE; later the OSCE,
Organization for Security and Cooperation in Europe). In local areas
where members of a minority formed a majority of the population, they
were to be given special status, including a national emblem, an2
educational system "which respects the values and needs of that group,'
11.
C. A.
MACARTNEY, NATIONAL STATES AND NATIONAL MINORITIES
INIS L. CLAUDE,
JR., NATIONAL
164-68 (1934);
13 (1955);
MINORITIES: AN INTERNATIONAL PROBLEM 7,
STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY ch. 3 (1999).
12.
European Community, Treaty Provisions for the Convention (Carrington Report)
Chapt. II, Art. 2(5)(c), U.N. Doc. S/23169 annex VII at 39 (1991).
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Michigan Journal of InternationalLaw
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a legislative body, a regional police force, and a judiciary that reflects the
composition of the population.'3 Disputes were to be taken to a newly
established Court of Human Rights, which would consist of one member
nominated by each of the Yugoslav republics and an equal number plus
one of nationals from European states who would
be nominated by the
4
Member States of the European Community.'
Issues of minority rights arose again in the mid-1990s, following
NATO efforts to end the fighting in Bosnia. Annex 6 of the Dayton Accords, signed in December 1995, committed the signatories-The
Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpska-to honor the provisions of fifteen
international and European human rights accords. The signatories also
agreed to the creation of a human rights ombudsman, who would be appointed by the OSCE, and a Chamber of Human Rights, where eight of
the fourteen members would be appointed by the Council of Europe."I
Forcible intervention, including the Cold War and efforts to protect
minority rights in the Balkans, are only two of the many examples of
violations of the norm of Westphalian/Vattelian sovereignty. Every major
peace treaty from Westphalia to Helsinki has included provisions that
contradict the Westphalian model.'6 The Treaties of Osnabruck and
Muenster, which make up the Peace of Westphalia, have extensive
provisions for religious toleration in the Holy Roman Empire, including
the stipulation that all issues related to religion had to be agreed on by a
majority of Catholics and Protestants, voting separately in the Diet and
imperial courts of the Empire.' 7 The Vienna settlement at the end of the
Napoleonic wars included provisions for the protection of the rights of
Catholics living in the Netherlands. In addition, Russia, Prussia, and
Austria pledged that they would respect the rights of individuals of
Polish nationality who were now living within their territories following
the final partition of 1795, which eliminated Poland as an autonomous
political entity." After the First World War, Woodrow Wilson's vision of
collective security led to minority rights being an integral part of the
13.
Beverly Crawford, Explaining Defection from International Cooperation: Germany's UnilateralRecognition of Croatia,48 WORLD POL. 482, 497 (1996).
14.
See supra note 12, at Arts. 7(a)(1), (3).
15.
United States, Department of State, The Bosnia Agreement annex 6, available at
http:llwww.state.gov/www/regions/eur/bosnia/dayann6.html (last accessed May 11, 2004).
16.
17.
J. A. LAPONCE,
THE PROTECTION OF MINoRITIES
23-42 (1960).
Stdphane Beaulac, The Westphalian Legal Orthodoxy-Myth or Reality?, 2 J. HIST.
INT'L L. 170-72 (2000); Treaty of Osnabruck, Oct. 24, 1648, 1 CONSOL. T.S. 198, 234, 23738.
18.
CLAUDE, supra note 11; MACARTNEY, supra note 11, at 159-60; JACQUES FouQUEs-DUPARC, LA PROTECTION DES MINORITIS DE RACE, DE LANGUE, ET DE RELIGION 12224(1922).
Summer 2004]
The Hole in the Whole
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postwar settlement. Collective security rested on democratic states;
democracy required self determination; but complete self determination
was impossible in a Europe where ethnic groups were intermixed in
many countries. To make democracy work, it was necessary that
minority rights be guaranteed. In the aftermath of the war, some thirtythree countries accepted provisions for minority rights that included, for
instance, in Poland a prohibition on voting on Saturday because it would
have violated the Jewish Sabbath, and the provision of bilingual
education in areas where there were large percentages of minority
children. A minorities bureau was established in the League of Nations.
A set of procedures was established that made it possible to take
violations of minorities commitments to the International Court of
Justice. 9 Finally, human rights were one of the three major baskets of the
Helsinki accords of 1975.20
While this cursory march through the last four hundred years highlighting military intervention for regime change, the Cold War, minority
rights in the Balkans, and the provisions of major treaties, does not exhaust the objectives and mechanisms associated with efforts by external
actors to influence the domestic authority structures of target states,
these examples do suggest that violations of Westphalian/Vattelian sovereignty are frequent. In some cases, these violations have not been
explicitly acknowledged; the Soviets would always hold that the development of communist regimes in central Europe was the result of
domestic preferences. In other cases, violations have been explicit; the
minorities provisions of the Versailles settlement and the Dayton accords
are spelled out at great length. In some instances, external actors have
aimed to change the fundamental nature of the regime in the target state,
as was the case for both the Soviet Union and the United States during
the Cold War. In other cases, they have aimed at specific aspects of governance. Some violations of Westphalian/Vattelian sovereignty have been
voluntary and thus consistent with the rules of international legal sovereignty. This was the case for the religious toleration provisions of the
Peace of Westphalia. None of the signatories of the treaties of Osnabruck
and Muenster, including the Holy Roman Emperor, believed in principle
in religious toleration, but they all recognized that religion was such a
19.
See The Polish Minorities Treaty, June 28, 1919, 225 CONSOL. T.S. 412, also in
Macartney, supra note 11, App. I, at 502-06; R.J. VINCENT, HUMAN RIGHTS AND INTERNATIONAL RELATIONS 44-45 (1986); OSCAR I. JANOWSKY, NATIONALITIES AND NATIONAL
115-22 (1945).
20.
VINCENT, supra note 19, at 66-79; see also Andrew Moravcsik, Lessons from the
European Human Rights Regime, in INTER-AMERICAN DIALOGUE, ADVANCING DEMOCRACY
MINORITIES
AND HUMAN RIGHTS IN THE AMERICAS
35, 48-49 (1994).
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Michigan Journalof InternationalLaw
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volatile issue that it could destroy the polity altogether.2' In other cases,
violations have been coercive, such as the Soviet military occupation of
Czechoslovakia in 1968, which violated both international and Westphalian/Vattelian sovereignty.
Thus, there is an inescapable tension in the sovereign state system.
Rulers have often decided that they are better off violating Westphalian/Vattelian sovereignty than honoring it. In some cases, they have
voluntarily ceded some of the autonomy of their own state. In other
cases, leaders of powerful states have used coercion to compromise the
autonomy of weaker states. The willingness of political leaders to violate
Westphalian/Vattelian sovereignty is not surprising, given the absence of
any final authoritative decision maker in the international system, and
differences in power, interests, and values across states. Thus, there is a
hole in the whole of the sovereign state system. One of the system's basic norms, the expectation that each state will be autonomous-not
subject to any higher authority within its own borders-has and will continue to be transgressed.
In my earlier work, following the analysis developed by Nils
Brunsson, I have referred to this kind of situation, in which rules are long
lasting but not consistently honored, as organized hypocrisy. In a recent
essay, Brunsson writes: "Hypocrisy is a response to a world in which
values, ideas, or people are in conflict-a way in which individuals and
organizations handle such conflicts. Organizations are routinely exposed
to conflict. People have different and often contradictory ideas about how
an organization should work and what it should achieve, and to satisfy
one demand fully may be to satisfy poorly or to fail to satisfy another."23
Hypocrisy in the international state system is inescapable, but an
environment in which hypocrisy is inescapable is not one in which a
coherent body of law, or even a coherent set of norms, can be developed.
21.
It was exactly these concerns about religious conflicts which prompted Bodin and
Hobbes to develop their notions of sovereignty as a final point of authority within the state.
They hoped by providing such a rationale for authority and obedience, that they would be able
to enhance political stability. Bodin himself was almost killed in religious riots in France in
1572; his anxiety about political stability was not simply based on abstract reasoning. For
Bodin's experience, see QUENTIN SKINNER, THE FOUNDATIONS OF MODERN POLITICAL
THOUGHT
22.
23.
THEORY
284-85 (1978).
KRASNER, supra note
11.
Nils Brunsson, Organized Hypocrisy, in THE NORTHERN LIGHTS:
IN SCANDINAVIA 201, 203 (Cziamiawska & Sev6n eds., 2003).
ORGANIZATION
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The Hole in the Whole
1085
Ill. THE DURABILITY OF DEVIATIONS
FROM CONVENTIONAL SOVEREIGNTY
The fact that political leaders have frequently breached Westphalian/Vattelian sovereignty does not mean that they have been able to
create stable outcomes that matched their objectives. There have been
failures and successes. At least in the long run, the United States was
more successful in Europe than the Soviet Union. Efforts to create stability by guaranteeing minority rights in the Balkans failed, but those
designed to enhance religious toleration were largely successful. One
stunning example of success in the contemporary world has been the
European Union, whose member states, as a result of the free exercise of
their international legal sovereignty, have compromised their Westphalian/Vattelian sovereignty.
Given our present level of information, it is not possible to reach a
definitive conclusion about the conditions that separate successful from
unsuccessful efforts involving violations of Westphalian/Vattelian sovereignty. We do not have a complete data set of such violations that might
allow us to systematically examine alternative explanations. However, at
least one productive way to think about this problem is to recognize that
because of the absence of a final authoritative decision maker, any stable
arrangement, whether it conforms with Westphalian/Vattelian sovereignty or not, must be supported by a self-enforcing equilibrium. That is,
the key actors, those with the ability to upset an arrangement, must conclude that there is no superior alternative available to them. These key
actors could come from within or without the country. They could be
motivated by normative or material concerns.
The European Union is an example of an institutional arrangement
that has transgressed conventional sovereignty rules so successfully that it
is hardly seen as being a transgression at all. The member states of the EU
have used their international legal sovereignty, their right to sign treaties,
to create supranational institutions and pooled sovereignty arrangements
that have compromised their Westphalian/Vattelian sovereignty. For instance, the rulings of the European Court of Justice have direct effect and
supremacy in the legal systems of the member states. Thus, the member
states of the EU are not juridically independent, even though this loss of
independence is the result of freely chosen commitments. For some issue
areas, such as trade policy, there is qualified majority voting; states may
have to accept a policy with which they disagree. Thus, the member
states of the EU are not autonomous; at least in some issue areas, they
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Michigan Journalof InternationalLaw
[Vol. 25:1075
cannot freely choose their policies.24 Countries that were members of the
EU when the Monetary Union was established could opt out, a path chosen for instance by the United Kingdom, but new members have not
been given this option.
The European Union has been so successful because it has created
over time a set of self-enforcing equilibria. Individual states may not
have been entirely happy with specific decisions that were taken, but
their leaders still decided that adhering to the Union was better than departing from it. Surely, some of the new members of the EU would have
preferred a different deal than the all or nothing package that they were
offered, but no other
offer was on the table. Taking this deal was better
25
than rejecting it.
A similar although less well known story might be told about the acceptance of religious toleration in Europe, embodied in a series of
agreements of which the Peace of Westphalia is the best known. Again,
rulers used their international legal sovereignty to compromise their own
Westphalian sovereignty. They accepted internationally legitimated constraints on their own freedom of action within their own territories
because religious conflict was so threatening to the stability of their political systems. Even though initially there were few who believed in
religious toleration, much less religious freedom, as a matter of principle, religious conflicts in Europe had been so destabilizing that accepting
internationally legitimated constraints was a better option for rulers than
demanding complete control over religious practices within their territory. Cuius regio eius religio was a slogan; it was not after 1648 a policy
26
prescription.
Finally, the American success in Germany and Japan after the Second World War can also be understood to be the result of a self-enforcing
equilibrium. During the Cold War, the United States maintained a large
military presence in both countries. Any domestic actor contemplating
24.
For discussions of EU decision making including the role of the European Court of
Justice, see Ann Marie Burley & Walter Mattli, Europe Before the Court: A PoliticalTheory of
Legal Integration, 47 INT'L ORG. 41 (1993); George Tsebelis & Geoffrey Garrett, The Institutional Foundations of Intergovernmentalismand Supranationalismin the European Union, 55
INT'L ORG. 357 (2001); Alec Stone Sweet & Thomas L. Brunell, Constructing a Supranational Constitution:Dispute Resolution and Governance in the European Community, 92 AM.
POL. Sci. REV. 63 (1998).
25.
For a discussion of how powerful states might use go-it-alone power to alter the
status quo in ways that leave weaker states only with options that are inferior to the status quo
ante, see LLOYD GRUBER, RULING THE WORLD: POWER POLITICS AND THE RISE OF SUPRANATIONAL INSTITUTIONS (2000). Nevertheless, even in these situations, if states see no better
option, acquiescence can be a self-enforcing equilibrium.
26.
See MACARTNEY, supra note 11, at 158-59, regarding the frequency with which
religious rights were preserved when territory changed hands. For a discussion of Catholic
rights in Canada when France gave control to Britain, see LAPONCE, supra note 16, at 23-24.
Summer 2004]
The Hole in the Whole
1087
defying American preferences would have to take account of the possibility that American leaders would use their on-the-ground coercive
capability. In addition, political leaders in Japan and especially Germany
were anxious about the threat posed by the Soviet Union. They both
knew that in case of conflict, they would not be able to defend themselves. Most importantly, key political leaders in both countries agreed
with the core elements of the American vision for their postwar reconstruction. These leaders wanted democracy and capitalism. The
combination of American military power, the Soviet threat, American
economic incentives, and support from key economic, political, and social sectors in Japan and Germany created a self-enforcing equilibrium
in which external intervention by the United States helped to establish
effective and decent domestic sovereignty in Germany and Japan.
Violations of Westphalian/Vattelian sovereignty that do not create
self-enforcing equilibria will fail. For instance, attempts by external
powers to use the extension of international legal sovereignty to secure
minority rights have rarely achieved their objective. At the outset, political leaders of would-be states are confronted with the options of nonexistence (no international legal sovereignty) or accepting the conditions
offered by external actors. They want recognition, but they are not particularly interested in, or perhaps even hostile to, minority rights. To
secure recognition, these leaders accept minority rights provisions for
their polity. Once recognition is granted, however, it cannot easily be
withdrawn. Unless the minority rights provisions generate a minimum
winning coalition domestically, they will be rejected or ignored."
In the case of Soviet involvement in central Europe, Communist
regimes lasted only so long as they were backed by the Soviet army.
When the Soviet army disappeared, so did communism in central
Europe. There was a self-enforcing equilibrium only so long as the
populations of central Europe knew that any attempt to escape the Soviet
orbit would be met with overwhelming force.2" The Communist regimes
which the Soviets created after the Second World War never secured a
27.
In the aftermath of the First World War, the only countries that were really supportive of minority rights were Hungary, which had few minorities of its own and many
Hungarians living in other states; and Czechoslovakia, which had a large German minority
population, but was also committed to democratic practices. See SEBASTIAN BARTSCH,
MINDERHEITENSCHUTZ IN DER INTERNATIONALEN POLITIK: VOLKERBUND UND KSZEIOSZE
IN NEUER PERSPEKTIVE 81-83 (1995).
28.
Even this self-enforcing equilibrium did not always hold. The Hungarian population
did revolt in 1956. The Soviet intervention in Czechoslovakia in 1968, in contrast, was more
the result of miscalculations by the Czech reformers who hoped that the Soviet Union would
accept dramatic internal reforms if they made it clear that external policies would not change.
See Christopher D. Jones, Soviet Hegemony in Eastern Europe, 29 WORLD POL. 216 (1977).
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domestic minimum winning coalition that could have sustained them
after the Soviet Union was gone.
In sum, violations of Westphalian/Vattelian sovereignty have occurred frequently. The aspirations of political leaders who engaged in
these breaches of conventional sovereignty have not always been realized. Institutional arrangements will only be durable if they create a selfenforcing equilibrium.
IV. BAD GOVERNANCE
One of the great challenges of the contemporary era, perhaps the
greatest, is how to promote better governance in badly governed polities.
For the period 1955 to 1998, the State Failure Task Force identified 136
state-failure events in countries with populations above 500,000. State
failure was operationalized as one of four kinds of internal political crisis: revolutionary wars, ethnic wars, "adverse" regime change, and
genocides. The percentage of countries experiencing failure increased
from about five percent in the mid 1950s to over twenty percent in the
1990s.29
The largest number of poorly governed states is found on the continent of Africa, where about a fifth of the countries have experience
failure at one time or another.3" Poor governance in general has been a
widespread problem for Africa, as reflected in overall economic performance and human development. In constant 1995 US dollars, gross
domestic product per capita for all of Sub-Saharan Africa fell from $660
in 1980 to $587 in 1990, to $575 in 2002. More than half of the African
states had absolute declines in their per capita incomes during the 1990s.
Life expectancy for the area as a whole increased from forty-eight years
in 1980 to 50 in 1990, but then declined to forty-six in 2002. 3" The
twenty-seven lowest ranking countries on the Human Development Index prepared by the United Nations Development Program are all from
Sub-Saharan Africa.32
States that experience failure or poor governance more generally are
beset by many problems, including deteriorating infrastructure,
widespread corruption, poor provision of public services, and insecurity.
29.
Jack A. Goldstone et al., State Failure Task Force: Phase III Findings iv-v, 3-5 (2000),
available at http://www.cidcm.umd.edu/inscr/stfail/SFrF%20Phase%20IH% 20Report%20Final.pdf
(on file with the Michigan Journal of International Law).
30.
Id. at 21.
31.
Derived from data found at http://devdata.worldbank.org/dataonline (last visited
April 11, 2004).
32.
UNITED NATIONS DEVELOPMENT PROGRAM, HUMAN DEVELOPMENT REPORT 2002:
DEEPENING DEMOCRACY IN A FRAGMENTED WORLD 151-52 (2002).
Summer 2004]
The Hole in the Whole
1089
The authority of the government may not extend beyond the capital city.
The state may enjoy the perquisites of international legal sovereignty-a
flag, access to international organizations, diplomatic immunity-but its
domestic sovereignty may be an empty shell.
The consequences of failed and inadequate governance have not
been limited to the societies directly affected. Poorly governed societies
can generate conflicts that spill across international borders. Transnational criminal and terrorist networks can operate in territories that are
not controlled by the internationally recognized government. Humanitarian disasters not only prick the conscience of political leaders in
advanced democratic societies, but also leave them with no good political choices.
State failure, or the collapse of existing authority structures, may
also be the result of external invasion. The United States, with substantial support from other countries and United Nations Security Council
authorization, invaded Afghanistan in 2001, displacing the Taliban government, and then in 2003, with much less support from others and an
ambiguous UN mandate, removed Saddarn Hussein from power in Iraq.
The principal motivation in both cases was American national security,
which was clearly related to the fact that Afghanistan had become a safe
haven and training ground for Al-Qaida, and less clearly related to misapprehensions about the level of weapons of mass destruction in Iraq.
Regardless of motivation, once the regimes in these two countries were
overthrown, the challenge was how to establish minimally decent domestic sovereignty.
V. THE PRESENT POLICY REPERTOIRE: GOVERNANCE ASSISTANCE
AND TRANSITIONAL ADMINISTRATION
The current menu of policy instruments available for state building
in badly governed or occupied countries is limited, consisting primarily
of foreign assistance to improve governance and transitional administration, both of which assume that in more or less short order, targeted
states can function effectively on their own. For many countries, this assumption is little more than wishful thinking.
Governance assistance is perfectly consistent with conventional sovereignty. Recipient states secure financial, technical, and other kinds of
aid from international donors, which is designed, for instance, to train
police and judges, organize elections, educate journalists, and enhance
the capacity of political parties. While governance assistance can make a
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positive contribution, there is no systematic evidence that it can make a
decisive difference.33
Transitional administration refers to situations in which the United
Nations authorizes the temporary occupation of a country by representatives of the international community. Bosnia, Kosovo, East Timor, and
Afghanistan are the most well known examples. The American occupation of Iraq can be seen as an analogous situation. Transitional
administration is designed to restore full conventional sovereignty to the
target country. The record is mixed. Coordination among a multiplicity
of international actors has been difficult. Moreover, if local political
leaders do not share the objectives of the international community, and
they know that external actors are committed to leave, there are high incentives for them to cultivate parochial local interests with little
commitment to democracy. Local actors must ask: when, not if, international actors leave, how can I stay in power? In both Bosnia and Kosovo,
the answer has been to maintain ties with ethnic supporters.34
VI.
TRUSTEESHIPS: AN UNLIKELY POSSIBILITY
While there is no panacea for state failure or poor governance in
general, the available toolkit of governance assistance and transitional
administration is inadequate. Other policy instruments will be explored.
One that has been mentioned with increasing frequency is some kind of
revival of trusteeship.35 The establishment of a trusteeship, unlike transitional administration, would not be short term. The political entity would
lose its international legal as well as its Westphalian/Vattelian sovereignty. The immediate goal would be to improve domestic governance.
The long term objective would still be to restore conventional sovereignty, but this might take decades, rather than years.
33.
See Stephen Knack, Does Foreign Aid Promote Democracy?, 48 INT'L STUD. Q.
251, 262 (2004).
34.
For discussions of peace building efforts since the Second World War, see Michael
W. Doyle & Nicholas Sambanis, InternationalPeacebuilding:A Theoretical and Quantitative
Analysis, 94 AM. POL. Sci. REV. 779 (2000). For a second study with a different data base but
comparable findings, see George Downs & Stephen John Stedman, Evaluation Issues in Peace
Implementation, in ENDING CIVIL WARS: THE IMPLEMENTATION OF PEACE AGREEMENTS 43,
50-52 (Stephen John Stedman et al. eds., 2002).
35.
E.g., Gerald B. Helman & Steven R. Ratner, Saving Failed States, 89 FOREIGN
POL'Y 3 (1993); Michael Ignatieff, State Failure and Nation Building, in HUMANITARIAN
INTERVENTION: ETHICAL, LEGAL, AND POLITICAL DILEMMAS 299, 308 (Holzgrefe & Keohane
eds., 2003); Martin Indyk, A Trusteeshipfor Palestine?,82 FOREIGN AFF. 51 (2003); RICHARD
CAPLAN, A NEW TRUSTEESHIP?: THE INTERNATIONAL ADMINISTRATION OF WAR-TORN TERRITORIES (2002).
Summer 20041
The Hole in the Whole
1091
There will, however, be no revival of an explicit, named, and legitimated alternative to sovereignty like the trusteeship system. The major
powers will not support such a move because it would put more pressure
on them to become involved in places that they would prefer to ignore.
Weaker developing countries will reject anything like trusteeship because it would threaten their own international legal sovereignty. The
resemblance to colonialism could not be avoided. 16 The resistance of
both the strong and the weak will preclude an explicit de jure endorsement of trusteeship for the foreseeable future.
VII. SHARED SOVEREIGNTY: A PROMISING ALTERNATIVE
Given the limitations on governance assistance, the inadequacies of
transitional administration, and the difficulty in explicitly legitimating
new institutional forms, alternative solutions will be explored. Shared
sovereignty is one possibility. Shared sovereignty would involve the engagement of external actors in some of the domestic authority structures
of the target state for an indefinite period of time. Such arrangements
would be legitimated by agreements signed by recognized national authorities. National actors would use their international legal sovereignty
to enter into agreements that would compromise their Westphalian/Vattelian sovereignty with the goal of improving domestic
sovereignty. One core element of sovereignty, the ability to enter into
voluntary international agreements, would be preserved, while at the
same time another core element, the principle of autonomy, would be
ceded.37
To endure, shared sovereignty arrangements would have to create
self-enforcing equilibria. Legitimacy issues would be mitigated by the
fact that those empowered to exercise international legal sovereignty had
agreed to the new arrangement. Legitimacy would be higher the more
the agreement appeared to be the result of symmetrical, rather than
highly unequal bargaining. By engaging external actors, local political
leaders could provide better governance, at least in some specific issue
areas. Better governance would attract domestic political support.
36.
For a discussion of the importance of sovereignty for new and weak states, see
ROBERT H. JACKSON, QUASI-STATES:
SOVEREIGNTY, INTERNATIONAL RELATIONS, AND THE
THIRD WORLD (1990).
37.
Robert Keohane has discussed a similar set of ideas using the concept of gradations
of sovereignty. See Robert 0. Keohane, PoliticalAuthority after Intervention: Gradationsin
Sovereignty, in HUMANITARIAN INTERVENTION: ETHICAL, LEGAL, AND POLITICAL DILEMMAS
275, 276-77 (Holzgrefe & Keohane eds., 2003). I have developed the idea of shared sovereignty more fully in Stephen Krasner, Sharing Sovereignty: New Institutions for Collapsed
and Failing States, in INTERNATIONAL SECURITY 29 (2004).
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Domestic political support would help to create a self-enforcing
equilibrium.
A. PastExamples of Shared Sovereignty
Given the complexity of the international environment and the absence of any authoritative decision maker, it is not surprising that shared
sovereignty arrangements have been tried in the past. At the end of the
nineteenth century, shared sovereignty arrangements were created in several countries in the area of finance. The Ottoman Empire and Greece
offer two examples. The Empire entered international capital markets in
the 1850s and, after several additional loans, found itself unable to meet
its external obligations in 1875. In 1881, the Ottomans agreed to create
the Council of the Public Debt. The members of the council--one each
from Germany, Austria, Italy, and the Ottoman Empire itself, and one
from Britain and Holland together-were selected by foreign creditors.
The Council was given control over several specific sources of revenue
including the salt and tobacco monopolies, the stamp tax, and the spirits
tax.3" In Greece, an international control commission, whose members
were appointed by the governments of Austria-Hungary, Italy, Germany,
France, Russia, and Britain, was appointed after a disastrous war with
Turkey which left the country bankrupt and occupied by Turkish forces.
The commission was given control over revenues that were necessary to
fund a new loan for Greece, part of which was used to pay the war indemnity demanded by Turkey as a condition for removing its troops. The
commission controlled certain revenues and also had the power to limit
new Greek debts and to control the money supply.3 9
Both of these arrangements established self-enforcing equilibria.
Neither the Ottoman nor Greek government was happy about having part
of its revenue stream controlled by a foreign entity, but without accepting these conditions, they could not secure access to international capital
markets. If the arrangement were violated, new access would be blocked.
For the lenders, direct control over specific revenues provided reassurance that the loans would be repaid.
As suggested above, the security arrangements for West Germany
during the Cold War are another example of a successful shared sovereignty arrangement. The western allies wanted to internationally
38.
DONALD C. BLAISDELL, EUROPEAN FINANCIAL CONTROL IN THE OTTOMAN EMPIPE 90-120, 124-30 (1929); HERBERT FEIS, EUROPE THE WORLD'S BANKER 1870-1914 33234 (1965); BERNARD LEWIS, THE MIDDLE EAST: A BRIEF HISTORY OF THE LAST 2,000 YEARS
298-99 (1995).
39.
JOHN A. LEVANDIS, THE GREEK FOREIGN DEBT AND THE GREAT POWERS, 1821-
1898 108-115 (1944);
FEIS, supra
note 38, at 286-90.
Summer 2004]
The Hole in the Whole
1093
legitimate the Federal Republic (FRG), while at the same time constraining its freedom of action. The leaders of Germany wanted to guarantee
democracy in their own country and lessen the anxieties of their
neighbors. Agreements signed at Bonn in 1952 and Paris in 1954 gave
the German government autonomy over virtually all policies except security. Germany not only renounced its right to produce chemical,
biological and nuclear weapons, but also integrated its forces into
NATO. The status of forces agreement signed by Germany gave the allies expansive powers, including exclusive jurisdiction over the members
of their armed forces, and the fight of foreign military to patrol public
areas including roads, railways, and restaurants, and to take any measures necessary to ensure order and discipline, authority usually reserved
for national police forces alone.40 Article 5(2) of the Convention on Relations gave the Western powers the right to declare a state of emergency
in response to a threat of security until FRG officials obtained adequate
powers to enable them to take effective action to protect the security of
the foreign forces. 1 Without a clear definition of these adequate powers,
the Western powers formally retained the right to resume occupancy of
the Federal Republic until 1990, when the Bonn Agreements were terminated by the 1990 Treaty on the Final Settlement with Respect to
Germany.
The United States succeeded in Germany because most Germans
supported democracy, a market economy, and constraints on Germany's
security policies. Obviously, the continuing strength of this support reflected many factors, including the long term economic success of the
West relative to the Soviet bloc. Shared sovereignty arrangements for
security in Germany contributed to effective domestic governance by
taking a potentially explosive issue off the table both within, and more
importantly without, Germany. Security dilemmas that might have
strengthened undemocratic forces in Germany never spiraled, because
Germany did not have exclusive control of its own defense.
B. Contemporary Examples of Shared Sovereignty
There have also been some hesitant steps toward shared sovereignty
in the contemporary world. One example, albeit anemic, is the
arrangement negotiated for the Chad-Cameroon pipeline, between the
40.
Revised NATO SOFA Supplementary Agreement, arts. 19, 22, 28 (August 3, 1959),
at http://www.osc.army.nil/others/gca/files/Germany.doc (last accessed May 8, 2004) (on file
with the Michigan Journal of International Law).
41.
Convention on Relations between the Three Powers and the Federal Republic of
Germany, Oct. 23, 1954, art. 5(2), 6 U.S.T. 4251, 4256. For a detailed examination of the
retained rights of the Western Powers, see Joseph W. Bishop, Jr., The "ContractualAgreements" with the FederalRepublic of Germany, 49 AM. J. INT'L L. 125 (1955).
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two governments and the World Bank. The arrangement includes both
the development of oil resources in Chad and the pipeline that will carry
this oil through Cameroon to the Atlantic. The lead oil company on the
project, ExxonMobil, and its partners, were anxious to involve the World
Bank. This was not so much because the project required additional
funding from the World Bank, but rather because the companies feared
that they would be criticized for violating human rights and environmental
principles were they to become heavily invested in Chad and Cameroon,
two countries with very poor governance and human rights records. 2 Shell
had actually withdrawn from the project because of its anxieties about the
political situation. Exxon hoped that the involvement of the bank, which
had been deeply engaged with problems of governance throughout the
1990s, would improve the way in which the project was administered,
and also give the companies protection from accusations that might be
made by NGOs concerning the environment and human rights,
particularly the rights of indigenous peoples 3
The World Bank was acutely aware of the natural resource curse and
did move to introduce new governance structures to Chad and Cameroon
as a condition of its involvement." Chad enacted a new law in 1998, which
committed a substantial portion of oil revenues to social welfare projects.
All oil revenues are to be placed in an escrow account, which is overseen
by a new body called the Oil Revenues Control and Monitoring Board,
whose members come from both civil society and the state. 5 At the insistence of the World Bank, Chad and Cameroon also accepted the creation
of an International Advisory Group, which is to visit the area at least twice
a year and make recommendations to the governments regarding governance in general, the use of funds, and the engagement of civil society. The
first chair of the Group was Mamaou Lamine Loum, a former Senegalese
prime minister.'
42.
In the 2000-2001 Freedom House ratings, both countries were rated as not free for
both political rights and civil liberties. Freedom House, Table of Countries: Comparative
Measures of Freedom, at http://www.freedomhouse.org/research/freeworld/2000/tablel.htm
(last visited May 8, 2004) (on file with the Michigan Journal of International Law).
43.
See Ken Silverstein, With War Africa Oil Beckons, L.A. TIMES, March 21, 2003, at
1.
44.
For a discussion of the natural resource curse, see Michael Lewin Ross, Does Oil
HinderDemocracy?, 53 WORLD POL. 325 (2001).
45.
Genoveva Herndndez Uriz, To Lend or Not To Lend: Oil, Human Rights, and the
World Bank's Internal Contradictions, 14 HARV. HUM. RTS. J. 197, 222-24 (2001); World
Bank, IBRD/IDA ProjectInformation Document: Chad-(Cameroon)Petroleum Development
and Pipeline Project 16-18, at http://www.worldbank.org/afr/ccproj/project/td44305.pdf (last
accessed May 8, 2004) (on file with the Michigan Journal of International Law).
46.
World Bank, Chad-CameroonPipeline and Related Projects InternationalAdvisory
Group Terms of Reference 2-4, at http://www.gic-iag.org/doc/iagtoren.pdf (last accessed May
8, 2004) (on file with the Michigan Journal of International Law); World Bank, International
Summer 2004]
The Hole in the Whole
1095
The potential leverage of international actors over the terms of development was significant. The project, which provides Chad with a fifty
percent increase in revenue, could not have become operable without the
engagement of the oil companies, and the oil companies wanted the
World Bank.
Nevertheless, the level of shared sovereignty is modest. Foreign actors are only fully engaged with the International Advisory Group, and it
can only give advice. If anything, the lesson of the Chad-Cameroon
pipeline is that creating potent shared sovereignty institutions in weak
states in the contemporary environment will be difficult. More robust
World Bank proposals for the project were dropped because of objections from some members of the Executive Board, including those
representing African states.
Courts on which international judges sit offer a second example of
shared sovereignty in the contemporary world. Hong Kong offers one
example. China wanted formal control over Hong Kong and international recognition that Hong Kong was part of China. At the same time,
it did not want to undermine Hong Kong's economic dynamism. China
needed to reassure both Chinese and foreign investors that the basic economic rules of the game would not be changed after the British left. To
provide this assurance, China allowed Hong Kong to continue to exercise international legal sovereignty, by keeping its seat in the WTO and
other international organizations, issuing passports, enforcing its own
customs procedures, concluding visa agreements with other states, and
establishing foreign economic missions. In addition, the judicial arrangements for Hong Kong engaged external authority sources and
foreign (Commonwealth) judges. Arrangements for the judicial system
were explicitly spelled out in the 1984 Joint Declaration describing the
conditions under which the British would relinquish its authority claims.
The Hong Kong Court of Final Appeal could call on foreign judges from
common law countries to sit with the Court and could refer to precedents
from common law countries in reaching decisions. In the first years of
the Court's existence, the fifth position on the bench was always occupied by a Commonwealth judge.
East Timor, Kosovo, and Sierra Leone provide a second set of
examples of the role of international judges, although the motivations
and mechanisms were quite different from those that led the Chinese
government to create a version of shared sovereignty for Hong Kong. In
Advisory Group on the Chad-Cameroon Petroleum Development and Pipeline Project, at
http://www.gic-iag.org/eiag.htm (last accessed May 8, 2004) (on file with the Michigan Journal of International Law).
47.
See Uriz, supra note 45; see also Paul Raeburn, A Gusherfor Everyone?, Bus. WK.,
Nov. 6, 2000, at 60.
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all of these countries, mixed tribunals were established that included
both national and international judges. In East Timor and Kosovo, these
tribunals, which William Burke-White has referred to as semiinternationalized, were initially created by a United Nations transitional
authority that exercised executive power.8 In East Timor, the newly
independent state continued this practice, providing an example of
shared sovereignty.
The clearest example of shared sovereignty is offered by Sierra
Leone. In Sierra Leone, the Special Court was established through a
formal treaty between the government of Sierra Leone and the United
Nations. The Court is charged with prosecuting war crimes and crimes
against humanity, as well as crimes under Sierra Leonean law dealing
with the abuse of children and wanton destruction of property.49 Three of
the five judges in the Appeals Chamber of the Court are appointed by the
Secretary General, as are two of the three judges in each trial chamber. °
Pardons can only be granted if they are approved by the President of the
Court. " The Prosecutor for the Court is also appointed by the Secretary
General. 2 The Special Court has primacy over the national courts of Sierra Leone. 3
Semi-internationalized or mixed tribunals bolstered the meager legal
talent available in the host country. They provided a mechanism through
which national political leaders in East Timor and Sierra Leone could
demonstrate to their external donors that they were committed to dealing
with war crimes and crimes against humanity. They have also been far
less expensive to operate than the international tribunals for Yugoslavia
and Rwanda, although in the case of Sierra Leone, the Special Court has
not come cheaply. By including both national and international judges,
these semi-internationalized tribunals secure greater legitimacy than
might be the case if international judges alone were in charge. 4
48.
William W. Burke-White, A Community of Courts: Toward a System of Interna-
tional CriminalLaw Enforcement?, 24 MIcH. J. INT'L L. 1 (2002).
49.
Statute of the Special Court for Sierra Leone arts. 2-5 (Aug. 14, 2000) at
http://www.sierra-leone.org/specialcourtstatute.html (last accessed May 8, 2004) (on file with
the Michigan Journal of International Law).
50.
Id. at art. 12.
51.
Id. at art. 23.
52.
Id. at art. 15.
53.
Id. at art. 8(2). See also Human Rights First, The Special Courtfor Sierra Leone, at
http://www.humanrightsfirst.org/intemational-justice/w-context/w-cont_04.htm
May 8, 2004) (on file with the Michigan Journal of International Law).
54.
Burke-White, supra note 48.
(last accessed
Summer 2004]
The Hole in the Whole
1097
C. Future Possibilitiesfor Shared Sovereignty
Natural resource exploitation offers one promising opportunity for
creating shared sovereignty arrangements. For developing countries,
natural resources have usually been a curse rather than a blessing. The
presence of raw materials has been negatively associated with democracy and economic growth. 5 Natural resources, and most clearly oil,
have also been connected to high levels of civil conflict. Many kinds of
raws materials, especially those requiring large amounts of investment,
such as oil, concentrate power and wealth in the hands of the state. Receipts from natural resource exploitation obviate the need to establish the
kind of legitimacy that would make it possible for a government to tax
its own citizens, and provide political leaders with revenues to pay for
repressive police and military structures 6 The challenge for raw materials exploitation in poorly governed polities is to create a self-enforcing
institutional arrangement that would limit the opportunities for corruption and exploitation and make revenues available for social welfare
programs that would benefit the general population.
A shared sovereignty arrangement for natural resources, at least
natural resources requiring large scale investments from multinational
corporations, could work in the following way. A trust would be created
through an agreement between the host country and say, the World Bank.
The trust would be domiciled in an advanced industrialized country with
effective rule of law. All of the funds generated by the natural resources
project would be placed in an international escrow account controlled by
the trust. All disbursements from the account would have to be approved
by a majority of the directors of the trust. Half of the board of directors
of the trust would be appointed by the host government, the other half by
the World Bank; the World Bank would have the option of appointing
directors, who would not be World Bank employees, from any country.
The trust agreement would stipulate that a large part of these funds
would be used for social welfare programs, although specific allocations
for say, health as opposed to education, would be left to the host government. The trust would refuse to dispense funds that did not conform
with these commitments. The trust might even be charged with implementing programs using the resources of the escrow account if the
government failed to act expeditiously.
The directors of the trust would be held accountable under the laws
of the advanced democracy in which the trust was incorporated. The
firms' responsibility to pay revenues into the escrow account and only
55.
56.
See Ross, supra note 44.
See Ross, supra note 44.
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the escrow account would be backed by legislation enacted by the country in which the trust was domiciled, and possibly by the home countries
of the companies involved in the project as well.
The obvious question is: why would political leaders in resource rich
countries sign on to such an arrangement? Perhaps some farsighted
leader might voluntarily embark on such a project, but relying on political will of this sort would have only limited results. Trusts would be
more likely to be put in place if advanced democratic industrialized
countries passed legislation that would prohibit the importation of any
products that were not developed with a trust agreement. Major importing countries could also pass legislation that would prohibit imports
from any oil companies that had circumvented trust arrangements. Rulers in resource rich countries would then have the option of getting
nothing or getting something through a trust arrangement that would
encourage productive use of revenues. This kind of arrangement would
be most promising for the development of new projects.
The key element for the success of a natural resources trust is that
the enforcement mechanisms would be outside of the producing country.
The trustees would be held accountable under the laws of the advanced
state in which the trust was domiciled. Companies that evaded payments
into the escrow account could be prosecuted by their home country governments, or if their governments refused to pass such legislation (as
might, for instance, be the case for Russia), would be banned from engaging in business with major industrialized democratic states.
Monetary policy is a second area where shared sovereignty might
work. Controlling inflation can be a daunting problem for poorly
governed states. A few have simply resorted to using the US dollar.
Ecuador is the most prominent example. Others have tried to engineer
credible commitments though domestic institutions, such as an
independent central bank. The credibility of such arrangements could be
enhanced if the governors of the central bank were appointed by both the
national government and by external actors. In this case, the IMF might be
the right partner. Non national governors could be of any nationality. They
would not be employees of the IMF. The IMF would sign a contract with
the host country setting up shared sovereignty on a permanent basis or
until both parties agreed to end the arrangement. If the national
government unilaterally abrogated the agreement, it would be a clear
signal to external actors that they were abandoning the path of monetary
responsibility.57 If the central bank were successful in constraining
57.
The logic of this argument follows the case presented for the Bank of England by
North and Weingast, where the creation of the Bank served as a mechanism that provided
information about the intentions of the ruler. See Douglass C. North & Barry R. Weingast,
Summer 2004]
The Hole in the Whole
1099
inflation, the arrangement would generate support from domestic actors.
Like oil trusts, one major attraction of such an arrangement is that it
would not be costly for the Fund or any other external actor.
Either constituent demands or the need for higher levels of foreign
assistance could provide incentives for national political leaders to enter
into such a shared sovereignty arrangement. The leaders of a country
that has suffered, for instance, from hyper-inflation might find that support for a shared sovereignty arrangement would be a way for them to
demonstrate seriousness and commitment to their own constituencies.
International lenders or aid donors might make shared sovereignty for a
state's monetary authority the condition for additional funds. The sustainability of such an arrangement over the long term, however, would
depend on its success; on the ability of a central bank with both national
and international directors to provide a more stable economic environment that would attract the continued support of citizens.
Commercial courts might be another area where shared sovereignty
could be productive. In a state where the rule of law has been sketchy,
the international legal sovereign would conclude a contract with an external entity, for instance a regional organization like the European
Union or the Organization of American States, to establish a separate
commercial court system. The judges in these courts would be appointed
by both the national government and its external partner. The expectation
would be that this court system would be attractive to local business interests. It would provide a venue in which they could resolve
disagreements more effectively than would be the case within existing
national institutions. The presence of such a court system might even
attract higher levels of foreign investment.
Like oil trusts and central banks, such an arrangement would not involve substantial costs for the external actor. Commercial courts could
be funded by the national government, or even to some extent by litigants. To sustain themselves over the long term such courts would have
to enjoy the support of the local commercial community, which would
benefit from an environment in which the rule of law was more widely
respected. In a generally badly governed environment, such as one with
a corrupt police force, the efficacy of court rulings would have to depend
on the willingness of litigants to obey them, if only because the reputational costs of ignoring a judgment would be higher than the costs of
Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in
Seventeenth-Century England, 49 J. EcoN. HIST. 803 (1989).
1100
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[Vol. 25:1075
honoring one. The key function of these commercial courts would be to
provide unbiased information. 8
In sum, shared sovereignty, a situation in which a political leader
uses international legal sovereignty to enter into a contractual arrangement which compromises his state's WestphalianNattelian sovereignty,
has existed in the past, is being tried in the present, and offers some
promising possibilities for the future.
CONCLUSION
The international system is messy and complex. It is hard for any actor to be fully, or in some matters even well, informed. There are many
different kinds of actors, including states, multinational corporations,
NGOs, and international organizations. The interests and capabilities of
these actors vary both within and across categories. States are organized
in many different ways: centralized, federal, presidential, parliamentary,
autocratic, and theocratic. International organizations can be universal or
regional; they can have general or specific portfolios. NGOs may be interested in everything from exploring outer space to spreading the
Gospel. The behavior of corporations may vary depending on the national economic structures within which they are embedded. The ability
of different actors to influence outcomes varies as a function of their capacity and the environment within which they are operating.
It would be reassuring to believe that the further development of international law will provide more stable, predictable, and just outcomes
in this complex and sometimes chaotic environment. This is, however, an
aspiration which ignores power asymmetries, differences in goals, and
the absence of any final authority. Powerful actors, especially powerful
states, can ignore norms, try to change them, or pick and choose among
them.
Sovereignty, the most widely recognized institutional arrangement
for the contemporary system, creates an inescapable paradox. One of the
core norms of sovereignty is that each state is autonomous and independent; each has the right to determine its own domestic institutional
arrangements. One state does not have the right to intervene in the internal affairs of another. At the same time, the domestic authority structures
of a particular state can threaten the core interests of others, including
their security interests. If those that are threatened conclude that regime
change, rather than outright conquest, is the optimal path for enhancing
58.
For a discussion of how such courts operated in medieval Europe, see Paul R.
Milgrom et al., The Role of Institutions in the Revival of Trade: The Medieval Law Merchant,
PrivateJudges, and the Champagne Fairs, 1 EcON. & POL. 1 (1990).
Summer 20041
The Hole in the Whole
their own security, there is nothing that can prevent them from trying to
change the domestic authority structures of weaker target states.
In some instances, the threats posed by particular regimes are direct.
A regime may be committed to an aggressive policy; under a different
regime, the same state might pose no threat. In the contemporary world,
for example, particular regimes might choose to support or harbor transnational terrorists.
In other instances, the threats posed by particular regimes are indirect, the unintended consequences of the inability of national institutions
to effectively govern within their own borders. Failed or badly-governed
states can generate pathologies that afflict the more powerful, including
disease, crime, genocide, and migration. Terrorist networks may flourish
not because they are supported by the government, but because public
authorities cannot exercise effective control.
The problem of aggressive or failed and badly governed states cannot be adequately addressed if all of the conventional norms of
sovereignty are honored. While some states might fix themselves, qualitatively changing the nature of regimes in others will involve actions that
are inconsistent with the principle of Westphalian/Vattelian sovereignty.
At least one strategy for improving governance would be to sacrifice
autonomy to improve domestic sovereignty through the creation of
shared sovereignty institutions. Ideally, this tradeoff would be legitimated by the exercise of international legal sovereignty, the right of the
rulers of recognized states to sign contracts. Even if shared sovereignty
arrangements were initially imposed by external actors or agreed to by
national political leaders under duress, such institutions could only survive over the long term if they created self-enforcing equilibria.
Shared sovereignty arrangements would vary across issue areas and
countries. Although shared sovereignty might generate new norms and
expectations, and be explicitly legitimated by new international agreements, they would be inescapably in tension with other norms and rules
in the system. Differences in interests and power, and the absence of any
final decisive authority, make it impossible for international law to provide the kind of predictability and coherence to which some of its
devotees aspire.